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PAKISTAN’S blasphemy laws are inconsistent with a number of human rights including freedom of expression; freedom of thought, conscience and religion; and equal protection of the law, which have all been well documented by human rights groups.
One aspect of the blasphemy law, particularly Section 295-C of the Pakistan Penal Code (PPC), that is given less attention than others is its impact on the right to a fair trial.
The right to a fair trial is a fundamental safeguard of the rule of law that aims to ensure individuals are not unjustly punished. It is protected by Article 10-A of the Constitution of Pakistan, as well as international human rights law, including the International Covenant on Civil and Political Rights (ICCPR). A fair trial is essential, not only for protecting the human rights of the accused and victims, but also to ensure the proper administration of justice which is a key component of the rule of law.
A key precondition to a fair trial recognised globally is that criminal offences must be prescribed by law and must conform to the principle of legality. This means that they must be formulated clearly and precisely to ensure individuals can regulate their conduct accordingly. Vague laws undermine the rule of law because they leave the door open to selective prosecution and interpretation, based on discriminatory policies of government officials and the personal predilections of judges.
The Supreme Court of Pakistan has held, in the context of deciding on the legality of the Anti-Terrorism Act, 1997, that “every citizen has an inalienable right under the Constitution to know what is prohibited by law and what the law does not require him to do”. The court interpreted this to mean that “the language of the statute, and, in particular, a statute creating an offence, must be precise, definite and sufficiently objective so as to guard against an arbitrary and capricious action on part of the state functionaries...”
The broad wording of the provision makes Section 295-C very vague.
Section 295-C of the PPC criminalises words, representations, imputations, innuendos, or insinuations, which directly or indirectly, lead to “defiling the sacred name of the Holy Prophet” (PBUH). If proven, the offence carries a mandatory death penalty.
As is evident from a plain reading of the provision, elements of the offence are vague and over-broad, are open to subjective interpretations, and give virtually no instruction to the people or to law enforcement officials and the judiciary regarding what behaviour is prohibited.
In practice, the vague and broad wording of the provision has allowed a wide range of acts and expression to be prosecuted under Section 295-C, including, for example: using language resembling the Prophet’s name on fabric; placing the Prophet’s name in an allegedly insulting place on an advertisement; disputing Islamic beliefs and rituals; and calling for reform or even critiquing provisions of offences against religion in the PPC.
The jurisprudence of Pakistani courts has not provided further precision to this provision, and courts have not read a “reasonable person” standard into their application of Section 295-C. A survey of jurisprudence on the provision shows that to prove the offence, the complainant does not have to prove the alleged blasphemous conduct was insulting to the Prophet by any objective standard, but only has to establish the defendant’s involvement in the alleged blasphemous conduct.
In addition, because the over-broad and subjective language of Section 295-C allows individual judges to interpret the “true” Islamic position on “defiling the sacred name of the Holy Prophet” based on their own individual reading of Islam, case law on the provision is disturbingly contradictory and arbitrary.
In 2002, for example, the Lahore High Court acquitted a Muslim man accused of pasting posters containing allegedly derogatory remarks about the Prophet Muhammad on the gate of a mosque, relying on traditions of the Prophet that taught mercy and forgiveness. The court also prayed for Allah’s mercy on him “so that he is pardoned of any sin which he may have committed.”
In another case in 2005, the Lahore High Court relied on a fundamentally different interpretation of Islamic jurisprudence. In this case, the trial court had convicted a Muslim man of uttering “derogatory remarks” against Prophet Muhammad. The court dismissed the appeal and upheld the trial court’s death sentence, reasoning that the Quran prohibited “even the slightest cause of annoyance” to the Prophet Muhammad, and traditions of the Prophet demonstrated that the only punishment for insulting him was death.
The government’s claim that it is “striving to establish the rule of law” is empty rhetoric unless it addresses the glaring reality of the blasphemy law, which continues to intimidate, persecute and deny its victims any real chance at defending themselves.
The writer is a legal adviser for the International Commission of Jurists.
Twitter: reema_omer
Published in Dawn, March 31st, 2015
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